Archives: Unions and Organizing

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NLRB Reverses Course, Permits Employer Unilateral Changes

The National Labor Relations Board has restored the right of unionized employers to implement changes that are consistent with past practice (as long as the change does not materially vary in kind or degree from past changes), even if that practice developed under a management rights clause in a collective bargaining agreement that has expired, … Continue Reading

Union Membership Rates Remain Low – And AFL-CIO Claims Victories

Despite the National Labor Relations Board’s “quickie election” rule, the percentage of unionized workers in the private sector remained essentially stable 2017, according to the Bureau of Labor Statistics of the U.S. Department of Labor. Only 6.5 percent of private-sector workers were in unions in 2017, an increase of 0.1 percent over the previous year. … Continue Reading

Kentucky’s Right-to-Work Law Survives Challenge

Kentucky’s right-to-work law has survived a challenge by the AFL-CIO and Teamsters union. The Kentucky legislation passed in the first week of the 2017 legislative session, making the Bluegrass State the 27th to adopt right-to-work legislation (Missouri was the 28th). A Kentucky state court dismissed the unions’ challenge to the law, which prohibits unions and … Continue Reading

NLRB Extends Time For Filing Responses To “Quickie Election” Request For Information

The National Labor Relations Board has extended the time for filing responses to its request for information regarding its 2014 election rule. The new date for submissions is Monday, March 19, 2018. In that request for information, the NLRB asked three questions: Should the 2014 Election Rule be retained without change? Should the 2014 Election … Continue Reading

Missouri to Vote on State’s Right-to-Work Law

When Missouri Republican Governor Eric Greitens signed “right-to-work” legislation into law on February 6, 2017, the Show-Me State was on the way to becoming the 28th state to prohibit unions and employers from requiring any employee to be a union member, or pay any dues or like amounts, as a condition of continued employment. Now, … Continue Reading

NLRB General Counsel Signals Important Changes at NLRB

National Labor Relations Board General Counsel Peter Robb continues to outline his plans for change at the NLRB.  First came his sweeping five-page Memorandum directing NLRB Regional Offices to submit to his Division of Advice for review cases involving “significant legal issues.” See our article, “New Labor Board General Counsel Issues Plans For Reversing Course.”  That was … Continue Reading

Management-Side Attorney John Ring Selected for Seat on Labor Board

President Donald Trump has nominated John Ring, a Washington, D.C.-based management-side labor and employment lawyer, to fill the vacant seat on the five-member National Labor Relations Board. If confirmed, Ring would replace former-NLRB Chairman Philip Miscimarra, a Republican, and restore a 3-2 Republican majority to the Board. Miscimarra’s term ended on December 16, 2017. Currently, … Continue Reading

New NLRB GC Opens Door to Possible Widespread Bargaining Unit Changes

The National Labor Relations Board General Counsel’s Division of Operations Management has issued a sweeping Memorandum to Regional Offices setting forth a variety of circumstances under which those offices should process “currently active [representation] cases” applying the NLRB’s recent decision (PCC Structurals, Inc.) that overruled Specialty Healthcare. “Currently active cases” is defined very broadly – … Continue Reading

Board Overrules Specialty Healthcare

In a stunning development, the National Labor Relations Board has overruled Specialty Healthcare, the so-called “micro-unit” decision and replaced the “overwhelming community-of-interest” standard adopted there with the traditional “community-of-interest” standard for determining an appropriate bargaining unit in union representation cases. PCC Structurals, Inc., 365 NLRB No. 160 (December 15, 2017). Under Specialty Healthcare, if a … Continue Reading

NLRB Overrules Browning-Ferris Joint Employer Standard, Reinstates Former Test

The National Labor Relations Board has overruled, 3-2, Browning-Ferris Industries, 362 NLRB No. 186 (2015) and returned to the pre–Browning Ferris standard that governed joint-employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017). The Board wrote: “We find that the Browning-Ferris standard is a distortion of common law as interpreted by the … Continue Reading

Trump Board Overrules Workplace Rules Analysis

In a stunning development, the National Labor Relations Board has decided that when determining the legality of a facially neutral rule under the National Labor Relations Act, it will consider (i) the nature and extent of the potential impact on rights protected by the Act, and (ii) legitimate justifications associated with the rule. By a … Continue Reading

Hold On! — Democratic Senators Challenge New Labor Board GC’s Plans

Senator Patty Murray (D-Wash.), Ranking Member, Committee on Health, Education, Labor and Pensions, and Senator Elizabeth Warren (D-Mass.) have written to  new NLRB General Counsel Peter B. Robb “to express serious concerns regarding Memorandum 18-02, which [Robb] issued to National Labor Relations Board [] Regional Directors on December 1, 2017.” For more on NLRB General … Continue Reading

Labor Board Asks: Retain, Modify, or Rescind ‘Quickie Election’ Rules?

A Request for Information regarding the “Quickie Election” representation regulations (at 29 CFR parts 101 and 102) will be published on December 13, 2017, the National Labor Relations Board has announced. The RFI will seek input on the 2014 amendments to representation case procedures that reduced the opportunities for employers to communicate with their employees … Continue Reading

Misclassification of Independent Contractor is Violation of NLRA, ALJ Rules

The misclassification of an independent contractor is an unfair labor practice under the NLRA, according to Administrative Law Judge Dickie Montemayor. Intermodal Bridge Transp., No. 21-CA-157647 (Nov. 28, 2017). ALJ Montemayor said that, because such misclassification chills future concerted activity and necessarily “deprives and conceals available protections” afforded to employees under the NLRA, misclassification in … Continue Reading

Congress One Step Closer to Restoring NLRB’s Joint Employer Standard

The U.S. House of Representatives has passed the “Save Local Business Act” (H.R. 3441), which would add a new, narrow definition of “employer” to the National Labor Relations Act (and the Fair Labor Standards Act) and which clarifies the definition of joint employment under both federal statutes. H.R. 3441 provides that two or more employers … Continue Reading

The Thrill of Victory and the Agony of Defeat: Illinois Home Health Aides Must Sue Individually To Recoup Fair Share Fees

Home health aides who successfully objected to the collection of “fair share” fees without their consent may not proceed as a class, a panel of the U.S. Court of Appeals for the Seventh Circuit has ruled, affirming a lower court’s determination. Riffey v. Rauner, No.16-3487 (7th Cir. Oct. 11, 2017). The home health aides had … Continue Reading

Senate Committee Approves Trump’s NLRB General Counsel Nominee

A critical National Labor Relations Board nomination was approved by the Senate’s Committee on Health, Education, Labor and Pensions on October 18, 2017, according to Bloomberg BNA. Management-side labor attorney Peter Robb’s nomination to be the Board’s next General Counsel has been long-anticipated by those interested in seeing changes in the agency’s doctrinal jurisprudence. The … Continue Reading

Employers Take Note: Public’s Approval of Unions Goes Up, Gallup Reports

Apparently, reports of the demise of organized labor are greatly exaggerated. According to a Gallup poll conducted from August 2 to 6, 2017, 61% of adults answered that they approve when asked, “Do you approve or disapprove of unions?” This is the highest percentage since 2003, when 65% said they approve. While only 22% of … Continue Reading

Seattle Ordinance Allowing Ride-Sharing Drivers to Unionize Temporarily Blocked by Ninth Circuit

The Ninth Circuit Court of Appeals has temporarily blocked enforcement of the City of Seattle’s Ordinance 124968, which grants certain collective bargaining rights to independent contractors who drive for ride-sharing companies like Uber.   The Ordinance, which was effective in January 2016, allows eligible drivers to collectively bargain with the companies that contract with them. Legal … Continue Reading

NLRB Finds Sports Team’s Electronic-Content Workers Employees Eligible To Unionize

The National Labor Relations Board has found the individuals who produce electronic content for viewing during professional basketball games are employees, rather than independent contractors. Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124 (2017). The Board reversed the decision of an NLRB regional director and reinstated a representation petition filed by the International Alliance of … Continue Reading

Bills in Congress Would Short-Cut ‘Quickie Election Rule,’ ‘Micro-Unit’ Reversals

With the recent confirmation of Marvin Kaplan to the National Labor Relations Board, the Obama (pro-union) Board is officially transitioning into a Trump (pro-business) Board. With that, Republicans hope, will come a change in the Board’s jurisprudence with respect to labor-friendly rulings by the Obama Board. At the top of the “wish list for reversal” … Continue Reading

Labor Law Lessons from Our Favorite Films: Dirty Dancing (Weingarten Rights – Nobody Puts Weingarten In The Corner)

As noted in our previous post about Dirty Dancing, as part of its investigation into thefts of guests’ property, the resort owner interviewed staff dance instructor, Johnny Castle (Johnny denies involvement in the burglaries), to determine whether he had an alibi for the evening when Moe Pressman’s wallet was stolen. We now know that Castle responded … Continue Reading

Labor Law Lessons from Our Favorite Films: Dirty Dancing

There are films with clear labor law undertones, such as On The Waterfront and Norma Rae. The National Labor Relations Act and its teachings, however, lurk in other pop culture examples. Thirty years ago, the romantic drama, Dirty Dancing premiered. The plot centers around the relationship between Baby (Frances) Housman (coincidentally, named after the first … Continue Reading
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